Copyright Infringement in Business Settings

Copyright infringement can expose businesses to substantial liability, from statutory damages reaching into the hundreds of thousands of dollars to attorney’s fees and injunctive relief that can halt business operations. Yet many business owners don’t fully understand copyright law or how easily their companies can inadvertently infringe on others’ copyrights—or how to protect their own creative works. Understanding copyright in business contexts is essential for avoiding costly mistakes and protecting valuable intellectual property.

Understanding Copyright Basics

Copyright is a form of intellectual property protection that gives creators exclusive rights to their original works. Unlike patents or trademarks, copyright protection arises automatically when a work is created and fixed in a tangible medium—no registration is required, though registration provides important benefits.

What Copyright Protects

Literary works (books, articles, blog posts, software code)
Musical works and accompanying lyrics
Dramatic works and accompanying music
Pantomimes and choreographic works
Pictorial, graphic, and sculptural works
Motion pictures and other audiovisual works
Sound recordings
Architectural works

In business contexts, commonly copyrighted materials include:

Marketing materials and advertising copy
Website content and design
Software and mobile applications
Product manuals and documentation
Training materials
Promotional videos
Photographs and graphics
Business presentations
Original reports and analyses

What Copyright Doesn’t Protect

Ideas, procedures, processes, systems, or methods of operation
Facts or discoveries
Titles, names, short phrases, and slogans (though these may be protectable as trademarks)
Works in the public domain
Works created by the federal government

The idea-expression dichotomy is crucial: copyright protects the particular expression of an idea, not the idea itself. You can’t copyright “a story about star-crossed lovers,” but you can copyright your specific novel telling that story.

Exclusive Rights of Copyright Owners

Reproduction Right

The right to copy or reproduce the work in any form. This includes photocopying, scanning, downloading, or making any other copies.

Distribution Right

The right to distribute copies of the work to the public through sale, rental, lease, or lending.

Derivative Works Right

The right to create new works based on the original, such as translations, adaptations, or modifications.

Public Performance Right

The right to perform the work publicly (for musical, dramatic, and audiovisual works).

Public Display Right

The right to display the work publicly (for pictorial, graphic, and sculptural works).

Digital Transmission Right

For sound recordings, the exclusive right to perform the work publicly by means of digital audio transmission.

Common Copyright Infringement Scenarios in Business

Businesses face copyright issues in numerous contexts:

Website Content and Images

One of the most common forms of business copyright infringement involves using content or images on websites without permission. This includes:

Copying text from competitors’ or other websites
Using stock photos without proper licenses
Downloading and using images from Google image searches
Using photographs of people without model releases
Copying website design elements

Many businesses mistakenly believe that if something is on the internet, it’s free to use. This is false—online content is typically copyrighted and protected the same as offline content.

Marketing and Advertising Materials

Businesses often infringe copyrights in their marketing efforts:

Using unlicensed music in videos or presentations
Incorporating copyrighted images in advertisements
Copying competitors’ marketing copy or slogans
Using unlicensed video clips
Reproducing articles or content without permission

Software and Technology

Software copyright issues frequently arise:

Using unlicensed software
Exceeding the scope of software licenses
Copying code from open-source projects without complying with license terms
Employees copying code from previous employers
Reverse engineering protected software

Employee-Created Works

Questions about who owns copyrights in employee-created works can lead to disputes:

Works created within the scope of employment (generally owned by employer under work-for-hire doctrine)
Works created by employees outside work scope
Works created by independent contractors (generally owned by contractor unless agreement specifies otherwise)

Social Media Content

Businesses using social media face copyright challenges:

Reposting user-generated content without permission
Using copyrighted music in videos or stories
Sharing copyrighted images or memes
Embedding third-party content improperly

What Constitutes Copyright Infringement

Copyright infringement occurs when someone violates one or more of the copyright owner’s exclusive rights without permission. To prove infringement, the copyright owner must show:

Ownership of a Valid Copyright

The plaintiff must own the copyright in the work. Registration, while not required for copyright to exist, is required before filing an infringement lawsuit and provides important evidentiary benefits.

Copying

The defendant must have actually copied from the copyrighted work. Direct evidence of copying is rare, so copying is usually proven through:

Access: The defendant had access to the copyrighted work Substantial Similarity: The accused work is substantially similar to the copyrighted work

The similarity must be in protectable expression, not just ideas or unprotectable elements.

Direct vs. Indirect Infringement

Infringement can be direct or indirect:

Direct Infringement: Actually copying, distributing, or using the copyrighted work without permission.

Contributory Infringement: Knowingly inducing, causing, or materially contributing to another’s infringement.

Vicarious Infringement: Having the right and ability to supervise infringing activity and a direct financial interest in it.

Fair Use Defense

Fair use is perhaps the most important limitation on copyright rights, allowing limited use of copyrighted material without permission in certain circumstances. Courts consider four factors:

Purpose and Character of Use

Transformative uses (creating something new and different) favor fair use. Commercial uses weigh against fair use, though commercial use alone doesn’t preclude fair use.

Nature of the Copyrighted Work

Using highly creative works weighs against fair use. Using factual works weighs in favor of fair use.

Amount and Substantiality Used

Using small portions favors fair use, though even small amounts can be infringing if they constitute the “heart” of the work. Using entire works weighs against fair use.

Effect on the Market

Uses that harm the market for the original work weigh against fair use. Uses that don’t affect the market favor fair use.

Fair use is assessed case-by-case, and no single factor is determinative. In business contexts, commercial use and market harm often make fair use difficult to establish.

Common Fair Use Misconceptions

Several myths about fair use persist:

Myth: Giving credit eliminates infringement. Reality: Attribution doesn’t create fair use. You can still infringe while crediting the source.

Myth: Using only a small amount is always fair use. Reality: Amount is just one factor. Even small amounts can infringe if they’re the most important parts.

Myth: Non-profit use is automatically fair use. Reality: Non-profit status favors fair use but doesn’t guarantee it.

Myth: Adding “no copyright infringement intended” prevents liability. Reality: Disclaimers are legally meaningless. Intent is irrelevant to infringement.

Remedies for Copyright Infringement

Injunctive Relief

Courts can order infringers to stop using the copyrighted work and destroy infringing copies. For businesses, injunctions can shut down key operations or require expensive redesigns.

Monetary Damages

Actual Damages and Profits: The actual damages suffered plus any profits the infringer made attributable to the infringement.

Statutory Damages: For registered works, copyright owners can elect statutory damages instead of actual damages, ranging from $750 to $30,000 per work infringed, or up to $150,000 per work for willful infringement. Statutory damages can be elected even without proof of actual damages.

Attorney’s Fees and Costs

Courts may award attorney’s fees and costs to prevailing parties in copyright cases, which can exceed the underlying damages.

Criminal Penalties

Willful copyright infringement for commercial advantage or private financial gain can result in criminal penalties, including fines and imprisonment.

Digital Millennium Copyright Act (DMCA)

The DMCA created important provisions affecting online businesses:

Safe Harbor Provisions

Internet service providers and website operators may avoid liability for user-posted infringing content if they:

Designate a DMCA agent
Implement a repeat infringer policy
Respond promptly to takedown notices
Don’t have actual knowledge of infringement

Takedown Notice Process

Copyright owners can send DMCA takedown notices requesting removal of infringing content. Service providers must act expeditiously to remove or disable access to allegedly infringing material upon receiving proper notice.

Counter-Notice Process

Users whose content is removed can file counter-notices if they believe the takedown was improper. The service provider must then restore the content unless the copyright owner files a lawsuit.

Protecting Your Business from Infringement Claims

To minimize copyright infringement risks:

Create Original Content

The safest approach is creating original content or properly licensing all third-party content used.

Maintain Proper Licenses

Keep records of all content licenses
Ensure licenses cover intended uses
Monitor license compliance
Renew licenses before expiration

Implement Copyright Policies

Train employees on copyright issues
Establish approval processes for using third-party content
Maintain a library of licensed assets
Create guidelines for social media use

Conduct Copyright Audits

Periodically review all content your business uses to ensure proper permissions exist.

Use Royalty-Free and Creative Commons Content Properly

Even “free” content has conditions. Ensure you understand and comply with applicable licenses.

Register Your Own Copyrights

Responding to Infringement of Your Works

If someone infringes your copyrights:

Document the Infringement

Collect evidence of the unauthorized use, including screenshots, URLs, dates, and any relevant communications.

Send a Cease and Desist Letter

Demand that the infringer stop using your work and remove infringing materials. This often resolves matters without litigation.

Issue DMCA Takedown Notices

For online infringement, DMCA notices can be effective at removing infringing content quickly.

Consider Settlement

Litigation is expensive. Settlement often makes economic sense even when you have strong claims.

File Suit if Necessary

For significant infringement that can’t be resolved otherwise, litigation may be necessary. Having registered copyrights strengthens your position significantly.

How Anunobi Law Can Help

At Anunobi Law, we provide comprehensive copyright counseling and litigation services for businesses. We help clients protect their creative works, defend against infringement claims, and enforce their rights when others use their copyrighted materials without permission.

Our services include:

Copyright registration and portfolio management
Drafting and reviewing content licenses
Conducting copyright audits
Developing copyright policies and training programs
Prosecuting copyright infringement claims
Defending against infringement allegations
Handling DMCA matters and online infringement
Negotiating settlements and licensing agreements

We understand that copyright issues can threaten business operations and valuable assets. Our team provides strategic counsel focused on protecting your business while minimizing disruption and expense.

Legal Disclaimer: This article is provided for informational purposes only and does not constitute legal advice. Copyright law is complex and fact-specific, and laws are subject to change. For advice regarding your specific situation, please consult with a qualified attorney. Reading this article does not create an attorney-client relationship.